Mark Malcolm Mader v Regina [2017] NSWDC 100

Mark Malcolm Mader v Regina [2017] NSWDC 100

Clause 53ZC Liquor Regulation 2008 required proof that the licensee promoted or publicised the discounted shots or caused them to be promoted or publicised. The prosecution led no evidence that the appellant was responsible for, authorised, wanted, procured or brought about the Facebook promotion. The evidence was that Ms Clifford published the Facebook page without authority. Responsibility as licensee was insufficient without proof of the required element, and the evidence could not support a finding beyond reasonable doubt that the appellant breached clause 53ZC.

Jurisdiction
Australia
Judgment Date
10 May 2017
Procedural Posture
Criminal Conviction Appeal Concerning a Liquor Licensing Offence / Appeal to the District Court of New South Wales Against a Local Court Conviction Under Section 11(2) Liquor Act 2007
Outcome
Appeal allowed; conviction and penalty set aside.
Legal Topics
['failure to Comply With Conditions of Licence' 'promotion or Publicising of Discounted Drinks Designed to Be Consumed Rapidly' 'licensee Responsibility for Employee or Agent Acts' 'conviction Appeal Under Crimes (appeal and Review) Act 2001 S.18(1)' 'fresh Evidence on Appeal']
['criminal Law' 'liquor Licensing' 'statutory Construction' 'appeals'] ['failure to Comply With Conditions of Licence' 'promotion or Publicising of Discounted Drinks Designed to Be Consumed Rapidly' 'licensee Responsibility for Employee or Agent Acts' 'conviction Appeal Under Crimes (appeal and Review) Act 2001 S.18(1)' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Criminal Conviction Appeal Concerning a Liquor Licensing Offence / Appeal to the District Court of New South Wales Against a Local Court Conviction Under Section 11(2) Liquor Act 2007

Legal Issues

  1. 1 ["Whether the appellant promoted or publicised discounted shots on the hotel's Facebook page within clause 53ZC Liquor Regulation 2008." 'Whether the appellant caused the discounted shots to be promoted or publicised within clause 53ZC Liquor Regulation 2008.' 'Whether the appellant could be criminally responsible merely because Ms Clifford, the marketing and promotions manager, published the Facebook promotion.' 'Whether the Magistrate erred by not construing the Liquor Act 2007 and Liquor Regulation 2008 to determine the elements of the offence.']

Ratio Decidendi

Clause 53ZC Liquor Regulation 2008 required proof that the licensee promoted or publicised the discounted shots or caused them to be promoted or publicised. The prosecution led no evidence that the appellant was responsible for, authorised, wanted, procured or brought about the Facebook promotion. The evidence was that Ms Clifford published the Facebook page without authority. Responsibility as licensee was insufficient without proof of the required element, and the evidence could not support a finding beyond reasonable doubt that the appellant breached clause 53ZC.

Court Disposition

Appeal allowed; conviction and penalty set aside.

Orders

  • ['The appeal against conviction is allowed.' 'I set aside the conviction and the penalty imposed by the Magistrate.']